Palomar v. Board of Parole Hearings

Filing 8

ORDER of Dismissal. Signed by Judge Edward M. Chen on 8/19/2013. (Attachments: # 1 Certificate of Service). (emcsec, COURT STAFF) (Filed on 8/19/2013)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

NORTHERN DISTRICT OF CALIFORNIA

7
8

GEORGE RUIZ PALOMAR,

9

Petitioner,
v.

ORDER OF DISMISSAL

11
For the Northern District of California

United States District Court

10

No. C-13-3215 EMC (pr)

BOARD OF PAROLE HEARINGS,

12

Respondents.
___________________________________/

13
14
15
16

I.

INTRODUCTION

Petitioner has filed a pro se action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254

17

in which he claims that the parole authority has failed to fix his term at a number of years

18

proportionate to his crime. This duty, he claims, arises under California Penal Code § 1170.2(h),

19

and is separate from the power to grant parole. His petition is now before the Court for review

20

pursuant to 28 U.S.C. §2243 and Rule 4 of the Rules Governing Section 2254 Cases in the United

21

States District Courts.

22
23

II.

BACKGROUND

Petitioner is serving a sentence of 17 years to life in prison following a conviction on April

24

30, 1981 in Stanislaus County Superior Court for second degree murder, attempted murder, and

25

brandishing a firearm in a threatening manner, with sentencing enhancements. See Docket # 1, p. 1.

26

Petitioner committed the murder in 1980. See Docket # 1, pp. 54-55, in Palomar v. Athans, No. C

27

13-1503 EMC (California Court of Appeal opinion stating that the murder committed by Petitioner

28

1

took place on December 31, 1980). He was sent to the California Department of Corrections on

2

June 11, 1981, for the murder committed when he was 21 or 22 years old. See id. at 77.

3

This is Petitioner’s second habeas petition this year. In his first petition, Palomar v. Athans,

4

No. C 13-1503 EMC, he claimed that the Board of Parole Hearings (“BPH”) improperly denied him

5

parole. That petition was filed on April 4, 2013, and challenged the evidence used to support the

6

denial of parole. The Court dismissed that action on April 11, 2013 because the constitutionally-

7

mandated procedural protections required in connection with a parole hearing for a California

8

inmate do not include a requirement that the parole denial decision be supported by some evidence

9

(or any other quantum of evidence). See Swarthout v. Cooke, 131 S. Ct. 859, 861 (2011).
III.

11
For the Northern District of California

United States District Court

10

DISCUSSION

The present petition does not challenge the denial of parole. Instead, Petitioner contends that

12

the BPH has violated his right to have his term fixed at a set number of years – a right that he

13

contends emanates from California Penal Code § 1170.2(h).1 He urges that the BPH’s “failure to

14

calculate and notify [Petitioner] of his base term in advance of his parole eligibility violates Due

15

Process Clause guarantees and results in disproportionate sentences.” Docket # 1, p. 19. Although

16

it entails a rather lengthy explanation, Petitioner’s claims ultimately allege only state law violations

17

and therefore do not entitle him to any federal habeas relief.

18

A.

DSL and ISL Sentencing Schemes, and The Setting Of An Inmate’s Term

19

California used an indeterminate sentencing law (“ISL”) until 1977 and has used a

20

determinate sentencing law (“DSL”) since July 1, 1977. Under the ISL, the trial court did not set a

21

term of years but instead sentenced the defendant to a usually wide range of years as provided by

22

law, such as “1 year to life” and the parole authority then would determine the length of the term

23

each defendant actually would serve. When a person was convicted of an offense for which

24

imprisonment was prescribed by law, the court imposing the sentence did not fix the term or

25

duration of the period of imprisonment. See In re Rodriguez, 14 Cal. 3d 639, 643 n.4 (Cal. 1975)

26
27
28

1

California Penal Code § 1170.2(h) provides: “In fixing a term under this section, the Board
of Prison Terms shall utilize the terms of imprisonment as provided in Chapter 1139 of the Statutes
of 1976 and Chapter 165 of the Statutes of 1977.”

2

1

(quoting former Cal. Penal Code § 1168). Instead, the Adult Authority was authorized to determine

2

the length of time a person should remain in prison within the outer limits of the indeterminate

3

sentence imposed. See id. at 645 n.11 (quoting former Cal. Penal Code § 3020). The Adult

4

Authority also was authorized to allow prisoners to go upon parole. See id. at 645 (quoting former

5

Cal. Penal Code § 3040). The matter of parole was discretionary, as the Adult Authority was

6

permitted to determine parole “at any time after the actual commencement of [such] imprisonment.”

7

Id. at 646 (quoting former Cal. Penal Code § 3041).

8

As of July 1, 1977, the DSL replaced the ISL. The DSL prescribed sentences of a set

9

duration for each crime, e.g., 2, 4 or 6 years in prison for first degree burglary, see Cal. Penal Code §
461. However, the sentences for most murders (and some kidnappings) remained indeterminate.

11
For the Northern District of California

United States District Court

10

The foregoing brief history of the ISL and the DSL provides necessary background to the state court

12

cases on the term-setting duties of the parole authority.

13

Under California law, a prisoner whose maximum term may be disproportionate to his

14

individual culpability has a right to have his term set at a number of years that is proportionate to his

15

offense so as to avoid the imposition of cruel and/or unusual punishment. See generally Rodriguez,

16

14 Cal. 3d at 651-52. (The California Constitution prohibits “cruel or unusual punishment” while

17

the federal constitutional prohibits “cruel and unusual punishments.” See footnote 2, supra.) The

18

question in Rodriguez was whether the prisoner’s indeterminate life sentence amounted to

19

unconstitutional cruel and/or unusual punishment. Rodriguez had served 22 years of an

20

indeterminate 1-year-to-life sentence for lewd conduct on a child (see Cal. Penal Code § 288) and

21

claimed that his life maximum sentence was disproportionate to the offense and thus violated both

22

the state and federal constitutional prohibitions on cruel and/or unusual punishment. The Rodriguez

23

court noted that a conviction under Penal Code § 288 could be based on a great range of conduct,

24

some of which was extremely serious and some of which was far less serious; thus, § 288

25

“encompassse[d] conduct for which life might be a permissible punishment in some cases but

26

excessive in others.” 14 Cal. 3d at 647. In order to analyze Rodriguez’s cruel and/or unusual

27

punishment claim, it was necessary to look beyond the facial validity of § 288 and consider the

28

particular sentence Rodriguez received for his violation of § 288. See 14 Cal. 3d at 648-49. To do

3

1

so, a term of years had to be set for the court to determine whether that term violated the

2

prohibitions on cruel and/or unusual punishment for that prisoner’s crime. Significantly, if a term

3

was not set for a prisoner, the term would be presumed to be the statutory maximum.

4

See Rodriguez, 14 Cal. 3d at 654 n.18.

5

Less than two months before Rodriguez, the California Supreme Court stated that “a

6

defendant under an indeterminate sentence has no vested right to have his sentence fixed at the term

7

first prescribed by the Adult Authority or any other period less than the maximum sentence provided

8

by statute. . . . It has uniformly been held that the indeterminate sentence is in legal effect a sentence

9

for the maximum term, . . . subject only to the ameliorative power of the Adult Authority to set a
lesser term. . . . . But these propositions, valid in the abstract, must be qualified when the maximum

11
For the Northern District of California

United States District Court

10

term is challenged as disproportionate. In such a case a defendant has an undeniable vested right in

12

insuring that his term be fixed proportionately to his offense.” People v. Wingo, 14 Cal. 3d 169, 182

13

(Cal. 1975) (citations and quotation marks omitted). The Wingo court further explained that, “in the

14

case of a life term convict who the [parole authority] does not believe merits a lesser term it may,

15

and customarily does, act by simply refraining from fixing his term at a span of years. Since by

16

statute he is already serving a life term there is no occasion for the [parole authority] to re-declare

17

the fact.” Id. at 183 (citations and quotation marks omitted). Lastly, the court recognized that term-

18

setting was not mandatory, when it referred to the time for filing a habeas petition as being “when

19

such a term is set, or if the Authority within a reasonable time decides not to fix a term.” Id. at 184;

20

see also id. at 184 n.16 (rejecting dissent’s assertion that the majority opinion is altering the ISL, and

21

stating that the opinion does not affect the discretion vested by law in the parole authority).

22

Rodriguez does not create an enforceable right to have a term of years set. Rodriguez and

23

Wingo establish that the parole authority has a duty to set a term of years and that the term will be

24

presumed to be the statutory maximum if no term is set. The term-setting is done as a means to the

25

end of doing a cruel and/or unusual punishment analysis and not as an end to itself.

26

B.

27
28

A California Life Prisoner Now Must Be Found Suitable For Parole Before His Term Is Set
Under California law, the duty to set (or fix) a term of years for a life prisoner does not arise

until after he is found suitable for parole. See In re Dannenberg, 34 Cal. 4th 1061, 1070-71, 1096

4

1

(2005). Where, as here, the life prisoner has not been found suitable for parole, there is no

2

obligation to set a term or a parole release date. See generally id. at 1070-71; 15 Cal. Code Regs. §

3

2403(a) (“[t]he panel shall set a base term for each life prisoner who is found suitable for parole”).2

4

The duty to set a term was discussed recently in In re. Stoneroad, 215 Cal. App. 4th 596,

904, 937-43 (Cal. Ct. App. 2012) (Kline, J., concurring and dissenting). In both cases, Justice Kline

7

discussed his concern that application of Dannenberg could result in a state constitutional violation

8

if, by the time the parole authority reached the stage at which Dannenberg said it was time to set a

9

term, the inmate already had served a term in excess of that which was proportionate to his offense.

10

As Justice Kline explained, the “setting of the base term is designed to insure life prisoners do not

11
For the Northern District of California

619-21 (Cal. Ct. App. 2013) (Kline, J.), and in the concurrence in In re Morganti, 204 Cal. App. 4th

6

United States District Court

5

serve terms disproportionate to the culpability of the individual offender,” because requiring service

12

of a disproportionate sentence would violate the California Constitution’s prohibition of cruel or

13

unusual punishments.3 Stoneroad, 215 Cal. App. 4th at 617-18 (citing In re Rodriguez, 14 Cal. 3d at

14

652, and Wingo, 14 Cal. 3d at 176). Especially with the lengthy parole denials now allowed under

15

California law, waiting to set a term until after the indeterminately-sentenced inmate is found

16

suitable for parole might result in the inmate serving a disproportionate term for his crime and

17

therefore suffering the “cruel or unusual punishment” prohibited by the California Constitution.

18

See Stoneroad, 215 Cal. App. 4th at 618.

19

While Petitioner may assert his rights under the California Constitution are jeopardized, the

20

problem for Petitioner here is that the term-setting concern is a state law matter. Petitioner’s claim

21

therefore amounts to nothing more than that the BPH is not following state law or that, by following

22
23
24
25
26
27
28

2

A term may be set by consulting a regulation that contains a matrix of suggested base terms
for several categories of crimes. See 15 Cal. Code Regs. § 2403. For example, for second degree
murders, the matrix of base terms ranges from the low of 15, 16, or 17 years to a high of 19, 20, or
21 years, depending on some of the facts of the crime.
3

The discussions in Stoneroad and Morganti are based on the California Constitution, which
provides that “cruel or unusual punishment may not be inflicted.” Cal. Const. Art. I, § 17. The U.S.
Constitution has a similar provision, i.e., “cruel and unusual punishments” shall not be inflicted.
U.S. Const. amend. VIII. The state and federal provisions are not identical, and are not analyzed
identically. See People v. Anderson, 6 Cal. 3d 628, 634-37 (Cal. 1972), superseded on other
grounds by state constitutional amendment, as stated in Ghent v. Superior Court, 90 Cal. App. 3d
944 (Cal. Ct. App. 1979).

5

1

state law, the BPH might violate the California Constitution. Federal habeas relief is not available

2

for an alleged state law error. Instead, such relief is available only for a federal law error. Cooke,

3

131 S. Ct. at 861. Petitioner cannot make a state law claim into a federal one simply by labeling it

4

“due process.” See Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996) (litigant cannot

5

“transform a state-law issue into a federal one merely by asserting a violation of due process”).

6

There is no cognizable federal due process claim. The petition fails to state a claim upon which

7

relief may be granted.

8

C.

9

An Eighth Amendment Claim Is Not And Cannot Be Stated
The discussion of “cruel or unusual punishment” obviously brings to mind the Eighth

Amendment’s prohibition on cruel and unusual punishment. Petitioner’s federal habeas petition

11
For the Northern District of California

United States District Court

10

does not state that he ever presented an Eighth Amendment cruel and unusual punishment claim to

12

the California Supreme Court to exhaust it. Regardless of whether state court remedies were

13

exhausted for the claim, the claim must be rejected here for the simple reason that life in prison for a

14

murder by an adult does not violate the Eighth Amendment.

15

“The Cruel and Unusual Punishments Clause prohibits the imposition of inherently barbaric

16

punishments under all circumstances.” Graham v. Florida, 130 S. Ct. 2011, 2021 (2010). “For the

17

most part, however, the [Supreme] Court’s precedents consider punishments challenged not as

18

inherently barbaric but as disproportionate to the crime.” Id. The Eighth Amendment contains a

19

“narrow” proportionality principle – one that “does not require strict proportionality between crime

20

and sentence,” but rather forbids only “extreme sentences that are ‘grossly disproportionate’ to the

21

crime.” Graham, 130 S. Ct. at 2021. “[O]utside the context of capital punishment, successful

22

challenges to the proportionality of particular sentences [will be] exceedingly rare.” Solem v. Helm,

23

463 U.S. 277, 289-90 (1983); see also Crosby v. Schwartz, 678 F.3d 784, 795 (9th Cir. 2012)

24

(“Circumstances satisfying the gross disproportionality principle are rare and extreme, and

25

constitutional violations on that ground are ‘only for the extraordinary case’”). Only in that rare

26

case where a comparison of the gravity of the offense and the severity of the sentence leads to an

27

inference of gross disproportionality does the court compare a petitioner’s sentence with sentences

28

for other offenders in the jurisdiction and for the same crime in other jurisdictions to determine

6

1

whether it is cruel and unusual punishment. Graham, 130 S. Ct. at 2022. A sentence of life in

2

prison (or 15-years-to-life) for a murder does not lead to an inference of gross disproportionality and

3

therefore does not amount to cruel and unusual punishment forbidden by the Eighth Amendment.

4

See Harris v. Wright, 93 F.3d 581, 584 (9th Cir. 1996) (sentence of life without parole for 15-year-

5

old murderer does not raise inference of gross disproportionality); United States v. LaFleur, 971

6

F.2d 200, 211 (9th Cir.1991) (“Under Harmelin, it is clear that a mandatory life sentence for murder

7

does not constitute cruel and unusual punishment”); cf. Solem, 463 U.S. at 290 n.15 (discussing

8

earlier case in which it had found the death penalty to be excessive for felony murder in the

9

circumstances of a particular case; “clearly no sentence of imprisonment would be disproportionate”

11
For the Northern District of California

United States District Court

10

for the felony murder of an elderly couple).4
Petitioner’s sentence of 17-years-to-life for a second degree murder with an enhancement for

12

use of a firearm does not raise an inference of gross disproportionality sufficient to state an Eighth

13

Amendment claim, even if he must spend his entire life in prison on that sentence.5 Petitioner’s

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

4

The Supreme Court and Ninth Circuit have upheld life sentences for crimes less serious
than murder. See e.g., Ewing v. California, 538 U.S. 11, 29-31 (2003) (upholding sentence of 25year-to-life for recividist convicted most recently of grand theft); Lockyer v. Andrade, 538 U.S. 63,
76 (2003) (upholding sentence of two consecutive terms of 25-years-to-life for recividist convicted
most recently of two counts of petty theft with a prior conviction); Harmelin, 501 U.S. at 996
(upholding sentence of life without possibility of parole for first offense of possession of 672 grams
of cocaine); Nunes v. Ramirez-Palmer, 485 F.3d 432, 439 (9th Cir. 2007) (upholding sentence of 25years-to-life for the underlying offense of petty theft with a prior conviction after finding petitioner’s
criminal history was longer, more prolific, and more violent than the petitioner’s in Andrade, who
suffered a harsher sentence); Taylor v. Lewis, 460 F.3d 1093, 1101-02 (9th Cir. 2006) (finding no
inference of gross disproportionality and upholding sentence of twenty-five years-to-life with
possibility of parole for possession of .036 grams of cocaine base where petitioner served multiple
prior prison terms and his prior offenses involved violence and crimes against a person); Cacoperdo
v. Demosthenes, 37 F.3d 504, 508 (9th Cir. 1994) (sentence of ineligibility for parole for 40 years
not grossly disproportionate when compared with gravity of sexual molestation offenses). Even in
the context of juvenile offenders, the Supreme Court held only that “mandatory life-without-parole
sentences for juveniles violate the Eighth Amendment.” Miller v. Alabama, 132 S. Ct. 2455, 2459
(2012) (emphasis added); see also id. (leaving open the possibility of the “uncommon” case when an
individualized sentence of life-without-parole for a juvenile would be permitted).
5

Other district courts also have rejected the argument that denial of a parole to an inmate
convicted of murder violates his Eighth Amendment rights. See, e.g., Walker v. Ochoa, 2013 WL
3353632, *3 (C. D. Cal. 2013) (denial of parole for inmate serving 17-to-life for second degree
murder did not violate Eighth Amendment); id. at * 4 (claim that BPH failed to set a base term
concerned the application of state law and was not cognizable in a federal habeas proceeding);
Harris v. Long, 2012 WL 2061698, *9 (C. D. Cal. 2012) (denial of parole for kidnapper sentenced to
7 years to life in prison did not violate Eighth Amendment); id. at *8 (rejection of claim not contrary
to or an unreasonable application of clearly established federal law); Franklin v. Swarthout, 2012

7

1

continued incarceration under the terms of his life-maximum sentence does not violate the federal

2

constitution under applicable case law. See United States v. McDougherty, 920 F.2d 569, 576 (9th

3

Cir.1990) (generally, “so long as the sentence imposed does not exceed the statutory maximum, it

4

will not be overturned on eighth amendment grounds”).

5

The Court will not grant Petitioner leave to amend to allege an Eighth Amendment claim,

6

because it would be futile: there simply is not an Eighth Amendment violation on the facts of this

7

case. The Court also will not stay that action to permit exhaustion of an Eighth Amendment claim

8

because such a claim is not even colorable. The Court can and will deny the unexhausted claim.

9

See 28 U.S.C. § 2254(b)(2).
D.

11
For the Northern District of California

United States District Court

10

No Certificate of Appealability
A certificate of appealability will not issue. This is not a case in which “jurists of reason

12

would find it debatable whether the petition states a valid claim of the denial of a constitutional right

13

and that jurists of reason would find it debatable whether the district court was correct in its

14

procedural [rulings].” Slack v. McDaniel, 529 U.S. 473, 484 (2000); 28 U.S.C. § 2253(c). The

15

denial of the certificate of appealability is without prejudice to Petitioner seeking a certificate from

16

the United States Court of Appeals for the Ninth Circuit.

17

E.

Petitioner’s Motions

18

Petitioner’s motion for discovery is DENIED. (Docket # 3.) The legal flaws that require

19

dismissal of the petition are not curable by amendment. There is no reason to permit discovery in

20

light of the incurably defective petition.

21

Petitioner’s in forma pauperis application is GRANTED. (Docket # 2.)

22

///

23

///

24

///

25
26
27
28

WL 2366034, *7 (C. D. Cal. 2012) (denial of parole for inmate convicted of second degree murder
did not violate Eighth Amendment); id. at 7 n.13 (claim that BPH failed to consult the matrix to set a
term is a state law claim that does not support federal habeas relief, notwithstanding petitioner’s
labeling claim as one for a violation of rights under Equal Protection and Ex Post Facto Clauses).

8

1
2
3

IV.

CONCLUSION

The petition is dismissed without leave to amend for failure to state a claim upon which
relief may be stated. The Clerk shall close the file.

4
5

IT IS SO ORDERED.

6
7

Dated: August 19, 2013
_________________________
EDWARD M. CHEN
United States District Judge

8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

9